NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Practical Advice in New Jersey Workers’ Compensation
A reader reached out asking about the terms and abbreviations often used in the workers’ compensation practice. Below is a glossary of these abbreviations and phrases often used (listed generally in the order in which they may appear as a case progresses).
“CP” – Claim Petition: This pleading is filed by the injured worker in workers’ compensation court when benefits (most often, permanency) are being claimed by the injured worker.
“MPC” – Medical Provider Claim Petition: In New Jersey, medical providers have the right to file their own petitions.
“FRI/FROI” – First Report of Injury: This form is completed by the employer after an accident. It generally outlines how the accident occurred and the injured workers’ injury(ies). This form gets filed with the Division. (For suggestions regarding what types of inquiries and items may be incorporated into an FRI/FROI and could be asked of the injured worker, please contact the undersigned at mburk@capehart.com or John H. Geaney, Esq. at jgeaney@capehart.com.)
“IW” – Injured Worker
“TTD” – Temporary Disability Benefits: For more information regarding TTD issues, please read our prior blog post entitled, Advice To Employers In Dealing With Complex TTD Scenarios.
“TDB” – Temporary Disability Benefits: These are benefits issued by the State of New Jersey. This is also an abbreviation for “New Jersey Temporary Disability Benefits.” In certain circumstances, an employee may receive State TDB benefits instead of TTD from the employer. In these cases, a lien will likely be filed by the Division of Temporary Disability Insurance in the workers’ compensation case.
“ROC” – Rate of Compensation: This refers to petitioner’s rate of TTD and the amount which is paid weekly while petitioner is out of work and receiving TTD benefits.
“RTW” – Return to Work: This is often used in conjunction with TTD (discussed above).
“LD” – Light Duty: Practitioners may also see the terms “mod duty,” “MD” or “modified duty.” “AD” – Alternative Duty may be used as well.
“FD” – Full Duty
“FCE” – Functional Capacity Evaluation: This may also be referred to as a fitness for duty examination. An FCE may be ordered by a treating physician to better assess return to work status and return to work potential/abilities.
“MA” – Medical Authorization: An MA signed by the injured worker is needed in order to obtain medical records from prior physicians during respondent’s investigation.
“ISO”: Refers to a New Jersey-based national company that searches for prior claims information. This used to be called a “CIB”.
“NCM” – Nurse Case Manager: In certain circumstances, a nurse case manager may be assigned to an injured worker’s case to assist with medical scheduling, appointments, exams, and treatment.
“CMS” – Center for Medicare Services: Medicare’s interests must be considered and protected in workers’ compensation claims and settlements.
“MSA” – Medicare Set Aside: An MSA must be obtained in certain types of settlements if the employee is a Medicare recipient or Medicare-eligible.
“CPL” – Conditional Payment Lien: MedicareCPL information must be obtained in settlements if the employee is a Medicare recipient or Medicare-eligible.
“HMS” – Health Management Systems: This is the Medicaid counter-part to Medicare’s CMS.
“Rogs” or “Roggs” – Interrogatories: Interrogatories may be served seeking additional information in occupational exposure, re-opener, dependency, and certain other types of cases.
“MMT” – Motion for Medical and/or Temporary Disability Benefits: This may be filed by an injured worker during a case if he is seeking additional TTD or treatment.
“RMI” – Request for Medical Information OR “DMI” – Demand for Medical Information: When one party seeks medical discovery from another party.
“IME” – Independent Medical Evaluation: This generally refers to an exam by either petitioner or respondent where a physician will address causation and treatment issues (often during treatment) or address causation and permanency issues (once treatment has concluded).
“PPD” – Permanent Partial Disability: These are benefits which are awarded to a petitioner at the end of the case depending on the amount of permanency petitioner is able to demonstrate. This may also see this abbreviated as “perm.”
“OAS” – Order Approving Settlement: This is one of two ways a case may settle. In Orders Approving Settlement, the petitioner’s case resolves for a specific percentage of disability and the petitioner retains the right to reopen for future benefits. Corresponding with the level of disability, the percentage award is paid over a certain number of weeks.
Readers with questions regarding workers’ compensation terms and phrases, or general questions about practical guidance and workers’ compensation tips may contact the undersigned at mburk@capehart.com.
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Maura Burk, Esq., is a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Ms. Burk concentrates her practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation matters. If you have any questions or would like more information, please contact Ms. Burk at 856.840.4941 or by e‑mail at mburk@capehart.com.
Fresh on the heels of COVID-19, reports of monkeypox outbreaks in the United States are starting to get the attention of employers. Monkeypox is a rare disease caused by infection with the monkeypox virus. Monkeypox symptoms are like smallpox symptoms, but milder and rarely fatal.
Monkeypox will not rise to the level of a pandemic because it does not transmit as quickly as the coronavirus and stopping it will not require dramatic interventions like the COVID-19 lockdowns.
The White House recently declared the virus a public health emergency with over 7,000 confirmed cases in the U.S. A county in California declared monkeypox a public health emergency earlier this week with 59 probable/confirmed cases within that county.
A news release from the Alabama Department of Public Health said as of August 8, 2022, there were 19 cases of monkeypox in Alabama.
As with COVID-19, it is conceivable that workers’ compensation claims will be made for monkeypox. For the same reasons that COVID-19 WC claims were denied in Alabama, claims for monkeypox will also likely be denied.
In Alabama, an occupational disease is defined as “a disease arising out of and in the course of employment… which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer.”
Therefore, for the monkeypox virus to be considered compensable in Alabama, the employee would have to be able to prove that contracting it was due to hazards in excess of those ordinarily incident to employment in general and that it is peculiar to the employee’s occupation.
It will be difficult for an employee to show that contracting the virus resulted from a risk of employment. The reason being that, like the flu, you face the same sort of risk when you go home or when you walk about in public. Some state laws have presumptions for health care workers or first responders. Alabama is not one of those states. Without a statutory presumption in place, it would be nearly impossible to prove causation.
About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
Attorney Alison Stewart has been appointed to serve a second
term on the Workers’ Compensation Section Council of the Iowa State Bar
Association (ISBA) for 2022-2023. The ISBA is a vibrant organization due in
large part to its volunteers. This will be Alison’s second term of service on the Council.
The purpose of this ISBA Section is to provide an organization in which members who have an interest in workers' compensation can meet for discussion and exchange of ideas; to provide an opportunity for discussion and exchange of ideas leading to improvement of the abilities of its members to practice in this field; and to assist the Worker's Compensation Commissioner in establishing rules and procedures for the more certain and expeditious disposition of matters coming before the Commissioner.
Written by: Matt Marriott
Over the last year, we have seen an uptick in claimant attorneys requesting a second opinion on treatment options under N.C. Gen. Stat. § 97-25(b) and that defendants 1) issue a prepayment for that visit and 2) pay beyond the NCIC fee schedule amount for the visit.
Claimant attorneys argue there are not any medical providers in North Carolina who will accept payment of just the fee schedule amount for second opinion visits and do not require any prepayment. Therefore, they contend they are being deprived of their right to a second opinion on treatment options under N.C. Gen. Stat. 97-25(b) if defendants do not pay a prepayment as well as more than the fee schedule amount for the visit. Additionally, many attempt to argue that the NCIC Fee Schedule does not specifically lay out a billing code for second opinion on treatment options visits under N.C. Gen. Stat. 97-25(b).
While there is no binding case law from the NC Court of Appeals or Supreme Court on these issues, the Full Commission issued a decision in May 2022 that provides a comprehensive analysis explaining:
Commissioners Taylor, Phillips, and Goodman explained in Wyatt v. The Golden Mint, Inc., I.C. No. 20-038523 (May 2022), that N.C. Gen. Stat. § 97-90 continues to prevent medical providers from forcing defendants to pay any kind of prepayment for a visit. The Commission specifically stated:
The charges assessed by healthcare providers for medical compensation under the Act are subject to the approval of the Commission. N.C. Gen. Stat. § 97-90(a) (2021). No “physician or hospital or other medical facilities shall be entitled to collect fees from an employer or insurance carrier until he has made the reports required by the Commission in connection with the case.” Id. “[A] request for a specific prior approval to charge shall be submitted to the Commission for each such fee or charge.” Id. Any health care provider who willfully or intentionally undertakes to submit charges for health care that was not furnished is subject to an administrative penalty, assessed by the Commission, not to exceed ten thousand dollars. N.C. Gen. Stat. § 97-88.3(a)(1) (2021). The clear intent of N.C. Gen. Stat. §§ 97-26 and 97-90 “is to assure that medical and related expenses incurred by an injured employee for which the employer or his insurance carrier is to be liable shall be kept within reasonable and appropriate limits, and the responsibility for the enforcement of these limits rests upon the Industrial Commission.” Morse v. Curtis, 20 N.C. App. 96, 99, 200 S.E.2d 832, 834 (1973), cert denied, 285, N.C. 86, 203 S.E.2d 58 (1974). Wyatt at 9-10.
In addition to confirming in Wyatt that N.C. Gen. Stat. § 97-90 prevents defendants from being compelled to pay a prepayment for a second opinion, the Commission also confirmed N.C. Gen. Stat. § 97-26 prevents defendants from having to pay beyond the fee schedule for a N.C. Gen. Stat. § 97-25(b) second opinion evaluation on treatment options. The Commission held:
N.C. Gen. Stat. § 97-26(a) requires the Commission to adopt by rule a schedule of maximum fees for medical compensation. The Commission, pursuant to that mandate and in compliance with the North Carolina Administrative Procedure Act, 150B et seq., has adopted 11 NCAC 23 Subchapter J Fees for Medical Compensation. 11 NCAC 23J .102(b)(1) sets the maximum reimbursement rate for professional services for evaluation & management at 140 percent of the Medicare base amount. While the Act also contemplates instances in which the fee schedule does not apply to a particular type of service and in those instances, the maximum reimbursement to which the provider is entitled is “the usual, customary, and reasonable charge for the service or treatment rendered,” this option is only available when the Fee Schedule does not apply. See N.C. Gen. Stat. § 97-26(c) (2021). The Commission, in its discretion, takes judicial notice of American Medical Association, Current Procedural Terminology (CPT®) (4th ed. 2019) and specifically the full description of CPT code 99456. Id. at 43. Pursuant to the North Carolina Rules of Evidence, the Commission concludes that this information is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. See N.C. Gen. Stat. §8C-1, Rule 201(b) and (c). In this instance, the fee schedule’s enumeration of services for “evaluation & management” and the CPT code 99456 description in its entirety contemplates examination by a non-treating physician with a medical history, exam with a diagnosis, assessment of capabilities and impairment, “development of future medical treatment plan; and completion of necessary documentation . . . .” A 97-25(b) second opinion examination encompasses an extensive medical history, a physical exam, diagnosis, assessment of capabilities and impairment, and development of future medical treatment plan. Thus, the Medical Fee Schedule and specifically CPT code 99456 contemplate and encompass the professional services involved in a second opinion examination. Wyatt at 8-9.
After verifying that defendants do not have to pay beyond the fee schedule for a second opinion evaluation on treatment options under N.C. Gen. Stat. § 97-25(b), the Commission established that $301.23 was the correct amount under the fee schedule for a second opinion under N.C. Gen. Stat. § 97-25(b), as laid out in CPT code 99456.
A decision from the Full Commission is not binding case law in the same way an opinion from the NC Court of Appeals or Supreme Court would be. With that said, Wyatt establishes that the Full Commission sides with defendants about not being responsible for any kind of prepayment when a plaintiff requests a N.C. Gen. Stat. § 97-25(b) second opinion evaluation on treatment options, and about not being responsible for payment beyond the fee schedule for such a visit.
While this issue remains a hot topic and could evolve in the future once the appellate courts address the issue, for now, defendants are within their rights to not issue any prepayment or pay beyond the fee schedule when a plaintiff attorney is demanding that those conditions be met.
Finally, based on Wyatt, CPT code 99456 is the correct billing code to apply to a second opinion evaluation under N.C. Gen. Stat. § 97-25(b), and the correct fee schedule amount is $301.23 for such a visit.
While litigation is by nature adversarial, reaching a settlement agreement can be one of the most rewarding moments. However, several recent decisions in the Nebraska Workers’ Compensation Court have been a gentle reminder that reaching a dollar figure in terms of a settlement agreement is only the first step of an entire process, a process which deserves equal attention by the defense attorney.
There are essentially two methods by which the parties can memorialize a full and final settlement: a Release of Liability or a Lump Sum Settlement. Regardless of which filing is applicable, both must be filed with, and approved by the Court. Until the Court enters an order dismissing the claim with prejudice, settlement has not been perfected. In several recent cases, the Court has addressed disputes over the settlement process. This article explores those decisions.
(1) Pay Settlements Timely
Pursuant to Neb. Rev. Stat. § 48-139(4), once the Court enters an order of dismissal with prejudice, the defendant must pay the settlement value within thirty days of the date the Release of Liability was filed with the Court. Failure to pay the settlement within 30 days results in a 50% penalty on the total amount owed. By way of example, if a defendant fails to pay a $50,000.00 settlement, the employee is entitled to an additional penalty of $25,000.00. The same 50% penalty applies to lump sum settlements which are not paid within 30 days of the date the Court enters an Order approving the same. Neb. Rev. Stat. § 48-125(3).
Every year, the Court addresses a handful of claims where the defendant fails to pay the settlement within the allotted 30 day time period. In February of 2021, Judge Hoffert awarded a penalty for a staggering $57,500.00 when the employer paid a settlement 40 days after a Release of Liability had been filed. The employer attempted to excuse its tardiness by saying a “series of unfortunate circumstances,” led to the late payment including the insurer inadvertently sending the check to the wrong firm, the attorney who received the check had COVID and was in quarantine, and the check again being sent to the wrong person from there. While sympathetic, Judge Hoffert highlighted that the law is mandatory in nature, and he had no discretion in the decision.
Because the law is not flexible, several recent cases have questioned how exactly to calculate thirty days. In February of 2022, Judge Fridrich had to answer that very question when presented with the argument that a settlement check, albeit received by the employee on the 32nd day, was still timely because of Martin Luther King Day. Citing Herrington v. P.R. Ventures, LLC, 279 Neb. 754, 781 N.W.2d 196 (2010), Judge Fridrich highlighted that if the 30th day is either a Sunday or a holiday for which the Compensation Court is closed, then the employer must pay the injured worker the next day which is not either a Sunday or a day the Court is closed. In the case at bar, the 30th day was a Sunday and the 31st day was a holiday (Martin Luther King Day). Therefore, despite the fact the payment was received on the 32nd day, the payment was not late, and no penalty was awarded.
Judge Stine was also recently asked to answer when to start counting the 30 days. As it frequently happens, an employee will sign a Release of Liability several days before the document is actually filed with the Court. In June of 2022, an employee attempted to argue that the 30 days to pay a settlement runs from the date the employee signed the release rather than the date it was filed with the Court. Quickly overruling that argument, Judge Stine highlighted that the 30 days only runs when the Release is filed with the Court.
(2) Scope of Settlements
While the vast majority of settlements in Nebraska are for “full and final settlements” meaning the employee waives all of his or her rights to benefits, there are times when the employee only waives a portion of his or her claim. For example, an employee may waive their future indemnity benefits but will keep his or her right to future medical care open. In cases where less than the entire claim is going to be resolved, it’s important to pay careful attention to ensure the settlement documents details the scope of benefits being waived.
On one end of the spectrum, in March of 2022, an employee filed a Motion asking the Court to enforce the settlement demand and require the defendant to pay certain outstanding medical bills and vocational rehabilitation. Contrary to that argument, Judge Fridrich highlighted that nowhere in the settlement agreements were those terms exempted (meaning, they were forever waived when the Court approved the settlement documents).
Contrast this with Judge Fridrich’s decision in a May of 2019 when he held that, by leaving open the employee’s right to future medical care, the employee was entitled to any and all treatment which resulted by virtue of the accepted back injury.
(3) Settlements Aren’t Perfected Until Filed
It sometimes happens that the parties agree to a settlement figure, only for one of the parties to thereafter change his or her mind. At least once a year, the Court is asked to enforce a settlement agreement that had not yet been approved by the Court.
In July of 2019, Judge Block was asked to enforce a settlement agreement against a defendant who, for whatever reason, decided to withdraw its agreement to settlement. The evidence showed that neither a Lump Sum Settlement Application nor Release was signed by the parties. Judge Block very clearly stated the Court does not have the authority to enforce a settlement agreement unless the same had been approved by the Court.
Judge Martin made the exact same holding in the May of 2021 case of Brayman v. Packaging Corporation of Amercia. In that case, no settlement documents had been filed with the Court. Judge Martin wrote, “While the Court understands plaintiff’s frustration by defendant’s action, or rather inaction, what she is seeking is specific performance of the settlement agreement. Specific performance is an equitable remedy. The Nebraska Workers’ Compensation Court does not have equity jurisdiction… Therefore, the Court has no alternative but to deny plaintiff’s Motion.”
These cases serve as a reminder that agreeing to a settlement figure isn’t the ending step. Until the correct documents are filed and approved by the Court, a settlement is not yet final. If you have questions about a settlement issue, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.
On April 28, 2022 the West Virginia Supreme Court of Appeals released its opinion in James A. Moore, Jr. v. ICG Tygart Valley, LLC creating a new rebuttable presumption for claimants in workers’ compensation claims involving the compensability of preexisting disease or injury.
The Court issued a new Syllabus Point in this reported decision: “A claimant’s disability will be presumed to have resulted from the compensable injury if: (1) before the injury, the claimant’s preexisting disease or condition was asymptomatic, and (2) following the injury, the symptoms of the disabling disease or condition appeared and continuously manifested themselves afterwards. There still must be sufficient medical evidence to show a causal relationship between the compensable injury and the disability, or the nature of the accident, combined with the other facts of the case, raises a natural inference of causation. This presumption is not conclusive; it may be rebutted by the employer.”
In Moore, the claimant was a shuttle car operator in the employer’s coal mine. In November 2016, he was operating the shuttle car when the brakes locked up and he was thrown upward, hitting his head on the canopy of the car. The claim was held compensable for right shoulder sprain, upper back strain, and neck pain. He was initially treated conservatively for his neck pain and started physical therapy.
The next month, December 2016, the claimant had an MRI of the neck which showed degenerative disc disease (spondylosis) and disc abnormalities in his cervical spine, but he had no history of neck injuries or cervical radiculopathy.
In January 2017, the claimant’s treating physician diagnosed him with cervical sprain and cervical radicular pain. The physician opined the injury exacerbated the preexisting cervical degenerative disc disease causing new symptoms, but she believed the condition was not compensable because there was no change in pathology.
In February and March 2017, the claimant continued to complain of constant neck pain with radiation to the right arm and right arm numbness.
In April 2017, the claimant saw a pain management physician who diagnosed C6 cervical radiculopathy. The claimant received treatment for that condition through 2017 and into 2018.
In October 2017, the claimant’s treating physician said he was at maximum medical improvement (“MMI”) for neck pain so the claim was closed for temporary total disability (“TTD”) benefits and a 0% permanent partial disability (“PPD”) award was entered.
In March 2018, the claimant’s pain management physician wrote a letter stating the cervical radiculopathy was directly related to the compensable injury. He said it was probable that the cervical radiculopathy would have occurred even in the absence of degenerative disc disease.
In May 2018, the claimant was evaluated by an orthopedic surgeon who assessed C6 cervical radiculopathy, and he performed an anterior cervical discectomy and fusion at C5-6. The surgeon completed a diagnosis update form asking that C5-6 spondylosis with C6 radiculopathy (diagnosis code M47.22) be added as a compensable condition of the claim.[1]
The request was denied.
Dr. Guberman performed an independent medical examination (“IME”) in November 2018 and diagnosed chronic post-traumatic strain of the c spine with C6 cervical radiculopathy (diagnosis code M54.12). He stated that the claimant’s cervical radicular symptoms and surgery were directly related to the compensable injury.
The West Virginia Workers’ Compensation Office of Judges of Judges (“OOJ”) affirmed the claim administrator’s denial of the request to add C5-6 spondylosis with C6 radiculopathy as a compensable condition. The West Virginia Workers’ Compensation Board of Review affirmed.
The West Virginia Supreme Court of Appeals noted that the claimant had asked the OOJ to add cervical radiculopathy as a compensable diagnosis. The Court noted that the OOJ had the statutory authority to rule on the request and modify the order of the claims administrator pursuant to W. Va. Code § 23-5-9(d)[2], but the OOJ abdicated its responsibility and defaulted to the diagnostic code listed on the form ignoring the reference to the physician’s notes that supported the claimant’s request.
The Court found that the claimant’s work injury aggravated his degenerative disc disease, which was previously asymptomatic, causing cervical radiculopathy. The Court held that a claimant’s disability will be presumed to have resulted from the compensable injury if: (1) before the injury, the claimant’s preexisting disease or condition was asymptomatic, and (2) following the injury, the symptoms of the disabling disease or condition appeared and continuously manifested themselves afterwards. There still must be sufficient medical evidence to show a causal relationship between the compensable injury and the disability, or the nature of the accident, combined with the other facts of the case, raises a natural inference of causation. This presumption is not conclusive; it may be rebutted by the employer.
In the Moore case, the Court found the evidence showed that the claimant’s degenerative disc disease was asymptomatic, and that the compensable injury caused him to develop cervical radiculopathy, a new distinct injury. The Court also noted that three (3) physicians opined the cervical radiculopathy was causally connected to the compensable injury. Also, the claimant’s own treating physician stated that the injury triggered the condition leading to cervical radicular pain.
As a result, the Court reversed and remanded the case to add C6 cervical radiculopathy (diagnosis code M54.12), reopen TTD, and determine whether Claimant was entitled to a PPD award.
Although the Moore case creates new law, it does not significantly change the way a claim should be handled.
West Virginia claimants will have to meet certain threshold showings before the new rebuttable presumption is invoked. Now, a claimant is going to have to show that before the injury, the claimant’s preexisting disease or condition was asymptomatic and that, following the compensable injury, the symptoms or disability first manifested and continuously manifested. The Court distinguished the situation of when the claimant had been chronically symptomatic from the situation of new onset of radiculopathy that had not manifested previously. The Court also distinguished between the condition/diagnosis vs. the disability. The condition/diagnosis of spondylosis was not compensable, it was just the disability/radiculopathy that was compensable.
This case raises several questions and issues that must be considered in the future. First, the definition of “continuously” will likely be litigated as the Court did not define it. What is “continuously?” Is it 24 hours a day, 7 days a week? Is it every week? Does it mean the new symptoms must be noted at every physician appointment, or will a medical record notation once every few months suffice?
Second, how soon must the new symptoms appear after the injury in order to be compensable? Does the onset have to be simultaneous with the injury? What if the new disability does not arise until a week later? A month later? The Moore case did not specify whether the onset of the claimant’s radiculopathy was simultaneous with the initial injury. If it was simultaneous, there is a risk for future cases that a delayed onset could expand the Court’s holding. Part of the path forward for defense strategies is to ensure the invocation of the new rebuttable presumption does not neglect the required medical showing of a causal relationship between the compensable injury and the disability.
In the post-Moore world of workers’ compensation, it will be as important as ever to look for any prior symptoms for degenerative conditions when considering the compensability of radiculopathy after a strain. Claimants may be able to establish that their preexisting degenerative conditions were asymptomatic by testifying they never had previously complained about those symptoms. This is why it is imperative to collect claimants’ medical records (both current and past) after receiving a WC-1. Not only do medical records often show claimants had pre-existing degenerative changes, but they also often show treatment for similar symptoms that claimants’ claim only manifested after the compensable injury
If a claimant requests a new condition be added as a compensable condition and the claimant is able to meet (1) and (2) of the rebuttable presumption but there is concern about medical causation, withhold a decision on compensability and send the claimant for a medical evaluation or obtain a medical record review. It is important to remember the Moore decision does NOT prevent the employer from obtaining an expert opinion that the incident described could not have caused the claimant’s further disability. Obtain a physician opinion to show there is no medical evidence of a causal relationship between the compensable injury and the disability.
If a claimant requests to add “spondylosis with radiculopathy” and you know that spondylosis is a degenerative condition but it was asymptomatic and the radiculopathy only began after the work injury, and medical causation is present, then it will be helpful to tailor the compensability decision to state that spondylosis is a degenerative condition that preexisted the compensable injury and the only accepted compensable condition is radiculopathy. When future claims on point with the Moore decision enter litigation, practitioners must argue that the degenerative condition cannot be added to the claim, just the new condition.
By:
Charity Lawrence
304-720-4056
clawrence@spilmanlaw.com
Dill Battle
304-340-3823
dbattle@spilmanlaw.com
Spilman Thomas & Battle, PLLC
300 Kanawha Blvd, E.
Charleston, WV 25301
Spilman Thomas & Battle, PLLC is the West Virginia member of the National Workers' Compensation Defense Network. The NWCDN is a nationwide network of defense firms specializing in protecting employers and carriers in workers' compensation claims and regulatory matters. For more information, visit www.nwcdn.com.
While each litigated case in the workers’ compensation court is unique, the standard process of how a case gets to trial is roughly the same. One party files a Petition and the opposing party files an Answer. Days later, the parties typically exchange what are called discovery requests. These requests most commonly include interrogatories and requests for production of documents. In general, interrogatories are questions that the opposing party must answer, while requests for production of documents are just that, a request for tangible records or physical things to be disclosed.
The main purpose of discovery is to allow the investigation of all available and properly discoverable information in order to limit the issues at trial while allowing for an efficient resolution of a legal claim. Moreover, discovery is meant to allow adequate pretrial preparation. Above all, discovery is meant to eliminate an opponent’s tactical surprise with the aim being a result reached upon on the merits of the case rather than legal maneuvering. Norquay v. Union Pacific Railroad, 225 Neb. 527, 407 N.W.2d 146 (1987).
Because discovery occurs in virtually every case, discovery issues are one of the most common disputes the compensation court judges must determine. These disputes include a plethora of issues ranging from failure to timely respond to discovery, to providing incomplete or inadequate answers, or making objections not supported by law. Because discovery disputes are one (if not the most) filed motions in the court, it naturally follows that each judge has formed his or her own unique way of viewing the associated rules. This article specifically focuses on the two of the more common issues: failure to respond to discovery and allegedly “irrelevant” requests.
Before divulging into each judges’ view of these three disputes, it should be noted that every single judge has emphasized the importance of the parties attempting to resolve disputes without involvement of the Court. Indeed, the rules mandate such good faith attempts are made between the parties. See Nebraska Workers’ Compensation Court Rules of Procedure Rule 3(D)(4). Because motions require hearings and court reporters, these disputes can be unnecessarily expensive, and the parties should make every effort to attempt to agree on the extent of discoverable information.
In this author’s opinion, the most commonly filed Motion to Compel results from a party’s complete failure to answer discovery. In these cases, virtually every single judge will first order the non-answering party to respond to discovery within anywhere from 10 to 30 days. If the party still hasn’t responded within the ordered deadline, a split has been created as to what sanctions the Court can assess for the party’s failure to answer discovery. The more historical approach from the bench has been (in cases where the Plaintiff failed to respond) to dismiss his or her Petition with or without prejudice. If the Petition is dismissed with prejudice, it cannot ever be refiled at a later time. A Petition dismissed without prejudice can be refiled as long as the statute of limitations has not run. Judge Coe dismissed an action in August of 2021 with prejudice when the employee failed to respond to an order compelling discovery. Faatz v. American Dream, Doc 221, Page 0196 (Neb. Work. Comp. Court, 2021). Alternatively, Judge Stine in February of this year dismissed a Petition without prejudice for the failure to respond to the Court’s three prior orders compelling discovery. Pauletta v. Crete Carrier Corporation, Doc 221, No 0532 (Neb. Work. Comp. Ct. 2022). Judge Hoffert took a similar approach when dismissing a 2020 Petition without prejudice. Murphy v. Omaha-League of Human Dignity, Doc 220, No 0404 (Neb. Work. Comp. Ct. 2020). See also Wilson v. Advance Services, Doc 219, No 1401 (Neb. Work. Comp. Ct. 2021) (Judge Martin dismissing a Petition without prejudice).
While the various judges have differing views regarding whether to dismiss a Petition with or without prejudice for failure to respond to discovery, there tended to be agreement that the Petition should at least be dismissed. Contrary to that viewpoint, Judge Block, in recent decisions, has shown hesitancy to dismiss the pleadings. While he acknowledges that § 6-337(b) (2)(A-D) of the Nebraska Discovery Rules does allow for the Court to dismiss the present action, he has verbally expressed disagreement that it allows for a dismissal with prejudice. In fact, the exact language of the rule does not address whether the dismissal shall be with or without prejudice. The rules states that sanctions may include “(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof or rendering a judgment by default against the disobedient party.” As contemplated by the rule, Judge Block has elected to instead stay the proceedings until the party fully and completely complies with the order regarding discovery. Logistically, a stay on the proceedings means that the Petition is still considered on file, but the Court will not set it for trial until the stay is lifted. Practically, this approach means an employee doesn’t risk his claim being barred by the statute of limitations because the Petition isn’t actually dismissed. It also tends to allow a litigated case to become stagnant because there is no pending trial date. Thus far, Judge Block seems to be the only sitting judge who is taking the “stay” approach, but it will be interesting to monitor if this trend gains notoriety with other judges who typically preferred to dismiss a Petition without prejudice.
Another common discovery dispute is over what counsel will define as “irrelevant” requests. In a workers’ compensation claim, the issues are relatively well defined. However, it sometimes happens that a party requests discovery on a topic that seems to be wholly irrelevant to the underlying workers’ compensation claim.
The general provisions governing discovery in Nebraska provide that a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter. Such inquires will be allowed “if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” § 6-326. In other words, there’s no question that discovery is meant to be construed broadly. This means that arguing something is not relevant to the pending case is not an easy argument to win. Stetson v. Silverman, 278 Neb. 389, 770 N.W.2d 632, (2009). Even so, while the scope of discovery may be broad, it is not unlimited. For example, an employee is certainly entitled to know from the employer the names of every other employee that witnessed the alleged accident. However, knowing the social security number of the witnesses would be highly irrelevant. Chestnut v. Rodney E. Rohde, Doc 221, No 1022 (Neb. Work. Comp. Ct. 2022).
Each judges takes a unique approach to determining whether a discovery request is relevant to the underlying workers’ compensation claim, and the ultimate decision always comes down to the exact type of information requested. However, important trends can be collected from some of the more recent cases. Judge Hoffert, for example, addressed whether an employee’s social media profile was relevant. In holding it was not, Judge Hoffert highlighted the lack of “factual predicate” underlying the request. Stated another way, Judge Hoffert noted the Defendant ought to present some kind of argument as to why the information was remotely relevant (for example, did the employee testify at his deposition that he posted accident-related information on his Facebook?). Judge Fridrich, in early 2022, similarly discussed how the party requesting the information should be prepared to argue how the requested information is expected to lead to discoverable information. Ziegelbein v. Moen Steel Erection, Doc 221, No 0915 (Neb.Work.Comp.Ct. 2022).
Judge Martin perhaps put it best when she verbalized her frustration when a party used the discovery rules to create unnecessary disputes long withdrawn from the true issues of the case. She wrote in a recent Order on Plaintiff’s Motion to Compel Discovery, “In looking at this matter, the Court was left to wonder what plaintiff gained from expending the time and energy to obtain this information on an accepted compensable accident and injury for which benefits are being paid.” Reading between the lines, it’s important that parties use the discovery rules for their intended purpose – to investigate the issues to be presented at trial – not as a matter of unnecessary gamesmanship.
If you have questions about a potential discovery issue, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.
One of the most nettlesome questions in New Jersey workers’ compensation is whether a non-party can attend an IME and whether a petitioner or a physician can record a medical examination without the other party’s consent and use it at trial. It is important to observe that the New Jersey Workers’ Compensation Act provides very little guidance on procedures regarding medical examinations other than one particular statutory provision which allows only an employee’s personal physician to attend an independent medical examination.
The New Jersey Appellate Division in Kathleen DiFiore v. Tomo Pezic, A-2826-20, A-0367-21, A-1331-21, (App. Div. May 3, 2022) recently set down some very clear rules on recording and attendance for defense medical examinations. The case focused on Rule 4:19 Physical and Mental Examination Of Persons. That civil court rule provides as follows:
In an action in which a claim is asserted by a party for personal injuries or in which the mental or physical condition of a party is in controversy, the adverse party may require the party whose physical or mental condition is in controversy to submit to a physical or mental examination by the medical or other expert by serving upon that party a notice stating with specificity when, where and by whom the examination will be conducted and advising, to the extent practicable, as to the nature of the examination and any proposed tests.
In civil court these exams are officially called DMEs (defense medical examinations), although litigation attorneys generally refer to them as IMEs as they are also called in workers’ compensation. The Court discussed prior New Jersey cases that have weighed in on various aspects of DMEs and departed from them to some extent. The Court first observed that a DME is “… not an adversarial proceeding inevitably designed to disprove claims of injury and trap plaintiffs into admitting or showing their claims are exaggerated or fabricated.” Rather, the Court said that the DME is a professional assessment that must adhere to the standards of the examiner’s profession. The Court also added, “Nor is the DME, as defendants tend to portray it, always a purely objective exercise unaffected by any conscious or subconscious biases of the examiner. The examiners tend to be hired repeatedly by insurance companies and defense firms, with the expectation the examiners will assist the defense, if needed, as witnesses at trial.” The similarity of DMEs to IMEs is obvious.
The Appellate Division in the DiFiore case established some basic rules in regard to recording of a DME and third-party attendance. “First, a disagreement over whether to permit third-party observation or recording of a DME shall be evaluated by trial judges on a case-by-case basis, with no absolute prohibitions or entitlements. . . . The trial court must balance the competing advantages and disadvantages tailored to the particular case.”
The Court added that the expert who performs the DME “does not have the right to dictate the terms under which the examination shall be held.” The court noted that if the expert does not wish to proceed with the exam on the conditions imposed by the court, the examiner can withdraw from the examination.
The Court emphasized that to record an examination, the plaintiff must make a request and there must be consent to the request. To that extent the DiFiore Court departed from the Carley case. “Second, despite contrary language in Carley, we hold that, going forward, it shall be the plaintiff’s burden to justify to the court that third-party presence or recording, or both, is appropriate for a DME in a particular case, absent consent to those conditions.”
Next the court suggested that technological advances make recording rather easy. “We take judicial notice that with the pervasive use of pocket-sized smart phones as cameras and audio recorders, they can be unobtrusively placed on a tripod with minimal effort.”
The Court also addressed the presence of third parties in the examination. “… If the court permits a third party to attend the DME, it shall impose reasonable conditions to prevent the observer from interacting with the plaintiff or otherwise interfering with the exam.”
With respect to psychological examinations, the Court concluded that there is no reason to treat psychological examinations differently than physical examinations with respect to recording the examination or having third parties present. “We also discern no reason to favor or disfavor third-party presence or recording for neuropsychological (or any other ‘mental’) DMEs as opposed to other specialties.”
Lastly, the Court stated that if an interpreter is needed for the exam, the examiner shall utilize a “neutral interpreter” agreed upon by the parties.
As all practitioners and judges well know, New Jersey is a state in which only one party has to consent to a recording. Why then did the Appellate Division devote 44 pages to this important decision? It is important to understand that the consequence of the DiFiore decision is that without a request for a recording and without consent, the recording will not be permitted to be used at trial. The point of this case is that if a party wishes to record an exam and use the recording at trial, the party must make an initial request. The same is true of a request to have a third party present in the examination.
These rules are sensible. The fundamental ruling in this case is that a request must first be made by the plaintiff to record the exam or to have a non-party attend the exam. Consent to the recording or attendance by the respondent or IME physician will resolve the issue. Few cases will likely require a Judge to rule on the issue.
As mentioned above, the DiFiore case emerged from civil litigation. It did not involve a workers’ compensation case. This issue will eventually get to the Appellate Division on appeal from the Division of Workers’ Compensation and will probably focus on a non-consensual recording of an IME that counsel attempts to use at trial. Respondent will object based on DiFiore and an appeal will likely follow. This practitioner expects that the Appellate Division will evaluate this issue exactly as it did in DiFiore.
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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
The case of Donald Servais v. Ocean Wholesale Nursery, LLC., A-2988-20, (App. Div. July 14, 2022) presents an unusual legal issue in workers’ compensation. The case involved a dispute about an employment separation agreement and whether that agreement could have been construed to constitute a payment of workers’ compensation benefits, thereby tolling the statute of limitations.
Mr. Servais suffered an amputation of three fingers of his right hand on January 26, 2016. No claim petition was ever filed within the two-year statutory period, and respondent never paid any workers’ compensation benefits to Mr. Servais, believing that the injury occurred at petitioner’s home and that petitioner was not an employee. Respondent hired petitioner as a consultant and not as an employee, although petitioner contended that over the course of five years his relationship with Ocean Wholesale Nursery, LLC changed to that of an employee. Petitioner ultimately filed a formal claim petition on October 26, 2018, well past the two year statute of limitations.
Respondent, as insured by Farm Family Insurance Company and administered by ESIS, filed a motion to dismiss the claim petition under the two year statute of limitations. Petitioner countered by raising an argument regarding an employment separation agreement signed on January 31, 2017 by both parties by which terms respondent paid $5,000 to petitioner to resolve their business relationship. Petitioner argued that the employment separation agreement was ambiguous and could have led petitioner to believe that the $5,000 payment was in part a payment for the loss of his fingers. Petitioner argued that the claim petition was filed within two years of the date of signing the employment agreement and was therefore timely filed.
The parties agreed to try the issue of the statute of limitations separately and then reserve for a later trial all other issues, such as compensability and employment. The judge heard testimony from petitioner, the Nursery’s owner, and the Nursery’s former general manager. The judge reviewed the terms of the employment separation agreement and found Section 7 of the Agreement to be confusing. That section excluded from the Agreement “claims that may arise after the date (petitioner) signs this agreement.” The judge thought that this language might lead petitioner to believe that any incidents that arose before he signed this Agreement were included. The judge also found paragraph seven to be ambiguous because it excluded “(petitioner’s) rights to receive benefits for occupational injury or illness under the workers’ compensation law” but did not specifically mention a “traumatic injury.” The judge acknowledged that there was no mention anywhere in the agreement of an injury to petitioner’s fingers but criticized the agreement for not informing petitioner of his right to file a workers’ compensation claim.
Based on his interpretation of the separation agreement the judge concluded that the separation agreement included any and all claims, including the loss of fingers. The judge also found that petitioner was an employee and was injured during the course of employment, although the judge previously agreed that these issues would be held for a later hearing. Finally, the judge apportioned $1,000 of the $5,000 paid under the separation agreement to the petitioner’s injury to his fingers.
Farm Family appealed the decision to the Appellate Division, which reversed in favor of Farm Family and vacated the substantial award to petitioner. The Court said, “Reviewing the Agreement de novo, we perceive no ambiguity. The plain language of the Agreement expressly excluded petitioner’s workers’ compensation claim.” The Court added:
Contrary to petitioner’s argument, paragraphs five and six of the Agreement would not reasonably lead a person to believe that the $5,000 payment under the Agreement was also a partial payment for his work-related injury because paragraph seven of the Agreement, clearly entitled in bold ‘Exceptions,’ expressly stated that the release in the Agreement did not ‘affect or limit’ his right to receive benefits for occupational injury under the Workers’ Compensation Law.
In the end, the Appellate Division held that petitioner failed to file his claim petition in time. The Court also added that the Judge of Compensation had no right to apportion $1,000 of the $5,000 payment under the separation agreement to the loss of petitioner’s fingers. The Court said:
The judge’s finding that $1,000 of the $5,000 payment of the agreement was payment for petitioner’s loss of fingers has no basis in the record evidence. The judge faulted the agreement for not addressing petitioner’s loss of his fingers and for failing to inform petitioner of ‘his right to file a workers’ compensation claim and his inability to waive same.’ Yet, in the Agreement, petitioner did not waive his right to file a workers’ compensation claim. To the contrary, in the Agreement, petitioner expressly reserved his right to file a workers’ compensation claim. He just didn’t do so timely.
The Court concluded by reversing the order denying respondent’s motion to dismiss and vacated the final judgment. The Court did not reach respondent’s argument regarding denial of due process given the decision to dismiss the case on the statute of limitations.
This trial and legal brief in this case were handled by former Capehart attorney Dana Gayeski, Esq. and the appeal was argued by John Geaney, Esq.
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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
Practical Advice in New Jersey Workers’ Compensation
Our clients often ask great questions regarding settlements in New Jersey workers’ compensation, particularly regarding the two types of settlements (Orders Approving Settlement, and Section 20/full and final), and the differences between them. This post provides examples of scenarios where an argument can be made for a Section 20 settlement.
There are two ways to settle a workers’ compensation claim in New Jersey. Most cases in New Jersey settle under N.J.S.A. 34:15-22 (known as an Order Approving Settlement) with a specific percentage of disability. In this case, the employee retains right to reopen for future benefits and receives a percentage award which is paid over a certain number of weeks corresponding with the level of disability. The higher the disability percentage, the more weeks that are paid.
Section 20 settlements are quite different. First, the Award is paid in a lump sum settlement. This is a full and final settlement of the case and it can never be reopened. A case settling pursuant to a Section 20 settlement must present a disputed issue of, liability, causation, jurisdiction, or dependency. Without one of these issues, there is no legal basis for a Section 20.
Issue of Liability: An issue of “liability” generally refers to a disputed employment issue (such as an off-premises injury) or a dispute regarding the existence of permanency. N.J.S.A. 34:15-36 states that in order to demonstrate permanent disability, a petitioner must prove, via objective medical evidence of an impairment (diagnostic studies) which restricts the function of the body. If the respondent can make a serious argument that there really is no permanent disability, then many judges will permit a Section 20 settlement.
In addition to proving an impairment, the petitioner must show also that the impairment is disabling. Disability is broader than impairment. It requires that the petitioner must also prove that he or she has a lessening to a material degree of working ability or a substantial impact on non-work activities.
Other bases for a Section 20 on the issue of liability are lack of timely notice under N.J.S.A. 34:15-17 or failure to comply with the Statute of Limitations under N.J.S.A 34:15-51.
Issue of Causation: An issue of “causation” generally refers to a disputed medical issue.
Case study/Example 1: Petitioner injures her left knee at work on January 1, 2020. Her post-accident MRI of February 15, 2020 is normal. She then has a subsequent non-work accident on March 1, 2020. An MRI of April 1, 2020 reveals an anterior cruciate ligament tear and a meniscal tear. We would argue that due to the March 1, 2020 subsequent accident which obviously caused new diagnostic findings, this case is appropriate for a Section 20 settlement. This example is similar to the case of Costanzo v. Meridian Rehab, A-5547-18 (App. Div. June 17, 2021), handled by our partner Carla Aldarelli. This case was discussed in our blog article entitled Respondent Prevails Where First MRI Post-Accident Showed No Abnormalities In Knee.
Case Study/Example 2: Petitioner injures her left knee at work on January 1, 2020. Her post-accident MRI of February 15, 2020 reveals an anterior cruciate ligament tear and a meniscal tear. During Respondent’s investigation, it is revealed that petitioner had a prior left knee injury of June 15, 2019 and on August 15, 2019, petitioner underwent a left knee MRI which also revealed an anterior cruciate ligament tear and a meniscal tear. We would argue that since the January 1, 2020 accident did not cause any new diagnostic findings, any disability is related to the prior June 15, 2019 accident, making this case proper for a Section 20 settlement.
Case Study/Example 3: Petitioner injures her left knee on January 1, 2020. On January 1, 2021, she receives an Order Approving Settlement for 15% of the leg from this January 1, 2020 accident. She re-opens her case on June 1, 2021. On May 1, 2021, she had a new left knee injury with a new employer for which she underwent treatment including a series of injections. She had no new treatment for the January 1, 2020 claim after filing her Re-opener. On the Re-opener, we would argue that the May 1, 2021 incident cuts off causation from the initial January 1, 2020 work accident, and the Re-opener should now be settled pursuant to Section 20.
Case Study/Example 4: Petitioner injures her left knee on January 1, 2020. On January 1, 2021, she receives an Order Approving Settlement for 15% of the leg from this January 1, 2020 accident. She re-opens her case on June 1, 2021. On May 1, 2021, she had a new and minor left knee injury with a new employer. The first employer for the January 1, 2020 accident agrees to provide all treatment following the reopener date, and the second employer pays no medical and temporary disability benefits because its incident was very minor. A petition is filed against the second employer. The employer for the May 1, 2021 incident will likely argue for a Section 20 dismissal. Most likely, the employer for the original January 1, 2020 re-opened claim will have to resolve the case on an Order Approving Settlement.
Issue of Jurisdiction: As a general matter, there are three principal ways in which jurisdiction in New Jersey may be found:
1. When the contract of hire is in New Jersey;
2. When the accident occurs in New Jersey;
3. When a substantial amount of employment for the respondent occurs in New Jersey.
There are instances where jurisdiction may be found in more than one state. This is allowed, so long as there is not a duplication of benefits between the two states (medical, TTD, permanency). So an employee may receive temporary disability benefits and medical benefits in another state like New York but apply for partial permanent disability benefits in New Jersey if the injury, hire, or work occurred in New Jersey.
Marconi v. United Airlines, 460 N.J. Super. 330 (App. Div. 2019) holds that localization of the employer in New Jersey and residency of the petitioner in New Jersey was not sufficient to warrant New Jersey jurisdiction where the petitioner worked almost exclusively in Pennsylvania and was injured in Pennsylvania. Petitioner argued that since United Airlines had a hub in Newark Airport (although petitioner worked in Pennsylvania) and petitioner also lived in New Jersey, those facts should be enough for jurisdiction. The Appellate Division disagreed. Our partner, Prudence Higbee, prevailed in this matter for United Airlines. More details about this case may be found in our blog article entitled United Airlines Wins Important Appellate Decision Involving Jurisdiction.
Issue of Dependency:
If it is determined that the work accident was not the cause of death, ultimately, we would argue that nothing except funeral costs are owed. However, in certain situations, a small Section 20 settlement/Award may be offered, in order to close the case.
If it is determined that an alleged dependent is not a valid dependent under Section 13, we would argue that nothing is owed. However, in certain situations, a small Section 20 settlement/Award may be offered, in order to close the case.
Miscellaneous Issues
Finally, there are also some “miscellaneous” considerations when determining if a Section 20 settlement is feasible. First, all Section 20 settlements are subject to petitioner’s, petitioner’s attorney’s, and the Judge’s approval.
Second, practitioners should keep in mind that legal fees are quite different between a Section 20 and an Order Approving Settlement. In Orders Approving Settlement, petitioner’s attorney’s fee (which is 20% of the overall Award) is paid 60% by Respondent and 40% by petitioner. For petitioner’s permanency exam, Respondent pays 50%; petitioner pays 50% (generally $300 each) In a Section 20 Order, petitioner pays 100% of his or her attorney’s fee.
Case Study/Example 1: Petitioner receives an Award for 15% partial total at 2021 rates, or 90 weeks at a rate of $258.00 per week, totaling $23,220.00. Petitioner’s attorney’s fee is $4,644. Of this, Respondent pays $2,786.40 and petitioner pays $1,857.60 (this may be rounded to the nearest dollar and rounded up for Respondent and rounded down for petitioner). Respondent and petitioner each pay $300 for petitioner’s expert. Ultimately, petitioner nets $21,062.40 and retains re-opener rights.
Case Study/Example 2: Petitioner receives a Section 20 Award of $27,500. Petitioner is solely responsible for his attorney’s fee of $5,500 out of his Award; he also pays the full $600 for his report. Ultimately, petitioner nets $21,400 and does not retain re-opener rights.
One disadvantage of a Section 20 is that payments are not lienable when there is a third party recovery unless both parties specifically agree on the record to make such payments lienable. This is quite different from an Order Approving Settlement where the entire permanency payment may be lienable if the third party amount is higher than the amount of the permanency award.
More than two thirds of settlements in New Jersey resolve on an Order Approving Settlement. The reason is that in many accidents there simply is no legal basis for a Section 20 settlement. The advantages of a Section 20 settlement are that the case is closed in a lump sum payment (unlike payments over many weeks for an Order Approving Settlement), there is no admission of liability and there is no potential for a reopener. But there must be a disputed issue of, liability, causation, jurisdiction, or dependency to argue for a Section 20 settlement.
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Maura Burk, Esq., is a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Ms. Burk concentrates her practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation matters. If you have any questions or would like more information, please contact Ms. Burk at 856.840.4941 or by e‑mail at mburk@capehart.com.